Clin v Walter Lilly & Co. Ltd

Whether works amount to demolition for the conservation-area regime is a question of fact and degree, assessed quantitatively by the extent of the building removed. Complete destruction is unnecessary. Works may constitute demolition where so much is removed that the building’s site is cleared for redevelopment, even though party walls, façades or other substantial elements remain.

The effect of the works on the character or appearance of the conservation area does not enter this threshold inquiry. That qualitative assessment belongs to the subsequent decision whether consent should be granted. An appellate court may interfere with a trial judge’s factual or evaluative finding only where it is plainly wrong because of an identifiable and material flaw.

A property owner engaged a contractor to combine and reconstruct two adjoining houses in a conservation area. The works removed the internal structure, dividing wall, roofs, chimney stacks and significant parts of the elevations, while retaining neighbouring party walls and parts of the front and rear façades.

The local planning authority required conservation area consent. Work stopped for approximately one year while permission was obtained. In [2019] EWHC 945 (TCC), the Technology and Construction Court held that the works amounted to demolition under section 74 of the Planning (Listed Buildings and Conservation Areas) Act 1990. The owner had therefore breached an implied contractual duty to use due diligence to obtain the necessary permission.

The owner appealed, contending that the threshold inquiry should consider the works’ impact on the character and appearance of the conservation area and that the retained external structure precluded a finding of demolition.

1. The appeal was dismissed. The threshold question under section 74 of the Planning (Listed Buildings and Conservation Areas) Act 1990 is whether a building is being demolished. This is a quantitative question of fact and degree concerning the extent of removal. It does not involve a qualitative assessment of the works’ impact on the character or appearance of the conservation area.

2. Section 72 did not require character and appearance to be considered at the threshold stage. The planning authority performs the single function of controlling demolition. Section 72 is respected when special attention is paid to preservation or enhancement in deciding whether consent should be granted. Repeating that assessment when deciding whether consent is required would be illogical, impracticable and productive of uncertainty for developers.

3. The principles in Shimizu (UK) Ltd v Westminster City Council [1997] 1 WLR 168 applied equally to listed buildings and unlisted buildings in conservation areas. Complete removal is unnecessary. Demolition may occur where so much of a building is removed that its site is cleared for redevelopment. Retention of party walls, façades, chimneys or supporting structures does not necessarily prevent that conclusion.

4. The trial judge had correctly identified and applied that test. His references to “substantial demolition” were shorthand for the Shimizu test. He was entitled to find that the complete removal of the internal structure and dividing wall, together with substantial external demolition, amounted in practical terms to clearing the building’s site for redevelopment. The relevant statutory subject was the building, rather than the garden or the entire parcel of land.

5. The finding was factual and evaluative. Appellate intervention required it to be plainly wrong through a material legal or evidential error, a fundamental misunderstanding, or a conclusion outside the bounds of reasonable disagreement. No such flaw was shown. The owner remained responsible under the implied contractual term for failing to obtain the required consent, with the extension-of-time and financial consequences ordered below.

1. Court of Appeal (Civil Division): In [2021] EWCA Civ 136, the court unanimously dismissed the owner’s appeal and upheld the finding that conservation area consent was required.

2. Technology and Construction Court: In [2019] EWHC 945 (TCC), Waksman J held that the works amounted to demolition and granted declarations allocating the relevant delay and financial consequences to the owner.

3. Court of Appeal: In [2018] EWCA Civ 490, the court held at an earlier stage that the contract contained an implied term requiring the owner to use all due diligence to obtain planning permissions and consents required for the works.

4. Technology and Construction Court: In [2016] EWHC 357 (TCC), Edwards-Stuart J rejected an alleged absolute obligation on the owner to secure the relevant planning permission.